1.    The Role of Tribunals

-    Federal Gov modified the standing test
-    Under ADJR the fed govt allowed people to request a statement of reasons
-    Freedom of Information Legislation
-    Ombudsman - informal way of getting dispute with agency resolved
-    Also AAT - people can appeal any decision to this body designed to appeal any decision of an agency (this is what we are dealing with here)
-    In most offices, the minister has set up an appeals bureau internally within the department. The weakness of internal review is that there is still the restriction of policy. The person lower down making the decision is governed by policy and the appeal heard by the minister will be restricted by policy
-    Tribunals are external from the government agency and they can re-assess the merits. People given an effective new right to challenge decisions of gov agencies
-    Difficult to define what a tribunal is? Is it a court? No, it is not set up as a court. It doesn’t have to be staffed by judicial officers. People go to the tribunal and the facts are argued again and the tribunal makes the decision.

-    Requirement of the statute that the chairperson of the AAT is to be a Fed Ct judge
-    Tribunal supposed to be more informal and flexible than a court
-    But also require people on tribunal to have at least 5 years of legal experience. Many presidents of tribunals are judges and members are often lawyers. Therefore they are confused
-    They are not courts but there is a heavy involvement of judges and legal professionals.
-    They are not part of judiciary, legislature. They are not vested with primary decision making powers. They are independent of the government agency. But because they are strange creatures, we put them in the Executive. In effect they step into the shoes of the original decision-maker. The tribunal has all of the duties to perform the duties the original decision maker made under the legislation and the decision of the tribunal completely overrides the decision of the tribunal
-    Tribunals must be independent of gov. They are set up under their own legislation. The members may be appointed by gov, yet so are judges
-    What is the relationship of AAT with gov agencies
-    See Act yourself

2.    Commonwealth Administrative Appeals Tribunal
2.1    Powers of the AAT in Relation to Application for Review

Power of AAT in relation to application for review
See ss41, 42, 42A, 42B, 42C, 43 of AAT Act.

s43: AAT can exercise all powers and discretions conferred upon it by the legislation which the decision-maker made the decision under and can
•    affirm their decision [43(1)(a)]
•    vary the decision [43(1)(b)]
•    set aside the decision and either make a fresh decision or send it back to the decision-maker to remake [43(1)(c)]

Re Drake and Minister for Immigration (1980) 2 ALD 634 [AAT]:
Drake (US citizen) was convicted for possession of cannabis, and his deportation was ordered under the Migration Act. The AAT affirmed the Minister’s decision. Drake questioned the role of the AAT and its findings. The matter was then returned to the AAT in Re Drake and Minister for Immigration.

Held:Minister must decide cases on their own merits and is free to apply policy. The Tribunal is likewise free to apply or not apply policy. Tribunal’s duty is to make the ‘correct or preferable decision’ on the material before it.
•    However, consistency with decisions in similar cases is necessary. Policy is a useful guideline in maintaining consistency.
•    Tribunal has the freedom to depart from or give no weight to Ministerial policy. However, particularly if policy has been subject to Parliamentary scrutiny, the suggestion is that the departure should be ‘cautious and sparing’.
•    Tribunal cannot apply an unlawful Ministerial policy (obiter)

Notes: AAT is simply another decision maker, so even the AAT must be held accountable for the way it makes its administrative decisions.
-    This was a deportation case. The AAT has a criminal jurisdiction. Where minister decides to deport someone for criminal activity, AAT has a jurisdiction to review.
-    The tribunals finding of fact can be different from the original decision maker. Tribunal can reassess the facts for itself. Tribunal is independent to the extent that it can find its own facts and call evidence to make its own decision.
-    In all criminal deportation matters, AAT can make its own policy. Courts
confirm this as being the independence of the AAT from gov.
-    It wouldn’t be prudent to simply ignore all aspects of the ministerial policy. If it did, it would arguably be overriding democracy, because if parliament scrutinises it, it is effectively the will of the majority. You can have an inconsisitency between what happens in parliament and decisions of the AAT
-    Under ADT legislation, a section says that that the ADT in NSW is required to follow ministerial policy. It does not share the same freedom as the AAT in this respect.

2.2    Jurisdiction

-    AAT has no general jurisdiction None of us have a right of appeal to tribunal. The only way we have a right is if the statute on that subject matter permits the right of appeal. The end of the Act will have a section that tells you whether you have a right of review and also may limit your rights of judicial review.

-    s25 AAT Act: The statute that confers power upon the decision-maker may provide that applications may be made to the Tribunal e.g. in Drake, the statute conferring power was the Migration Act.

-    Note: the statute may limit the jurisdiction of the AAT e.g. ‘AAT may return the decision to the decision-maker but cannot make a fresh decision’ – this will determine the extent of the AAT’s jurisdiction. I.e. AAT may affirm a decision, vary it, set it aside or remit it (send back to decision-maker)
-    As the statute gives the right to a person to approach the AAT, it may also limit the jurisdiction of the AAT e.g. statute may say that a person has a right of appeal to the AAT, BUT that AAT may not have the right to set aside a decision in certain areas.
-    AAT has all rights of decision maker

e.g. Re Gay Soildarity Group and Minsiter for Immigration
•    Based on the Migration Act, a ‘person’ had to bring the action
•    A corporation is a legal person, but an unincorporated entity is not. So the group did not have standing.

2.3    Membership

2.4    Who may apply For Review of a decision?

Standing of corporations and unincorporated groups
s27(1): any person whose ‘interests are affected by the decision’.

A party can seek to be joined to an action.
•    A person who applies for joinder need not have standing to challenge the decision: Re Control Investments

s27(2): An organisation (whether incorporated or not) shall be taken to have interests that are affected by the decision if the decision relates to a matter included in the objects or purposes of the organisation
(3) does not apply to a decision made before the organization was formed (or before they included the matter in their objects and purposes).

Test: does the decision under review relate to specific matter included in the objects/aim of the association?

•    A ‘relevant’ interest of the person must be affected by the decision: Re Control Investments
•    Determined on SM and context: Re Control Investments
•    Familial, personal or other non-material interests are relevant: Re McHattan and Collector of Customs (NSW) (1977) ALD [AAT]

Note:
-    Common law test for going to court is that you must be a ‘person directly affected’, in order to have the standing to get into the courts
-    The AAT is easier to approach: you need only be a ‘person whose interests are affected’.
-    Unincorporated associations have had difficulty getting in to AAT. They are not corporate persons. But they can come in if their objects are closely related to the subject of the decision.

Re Control Investment and ABT:

Facts: ABT refused an application for approval of share transactions as it would result in a concentration of media interests in NewsCorp (media is supposed to be independent), adverse to the public interest. Newscorp took ABT to the AAT. Various parties asked to be joined to the action. ALP, an unincorporated association called “Justice in Broadcasting”, Australian Journalists Association and Rupert Public interest Movement Inc.

Issue: Could the parties be joined to the action? What does interests affected mean?

Held:
-    A ‘person’ whose ‘interests are affected’ including corporations, have standing
-    AAT decided that it had to be a “genuine affection of interest which attaches to him”
-    “Across the pool of sundry interests the ripples of affection may widely extend”  
-    a persons interests may be affected adversely or beneficially

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